United States v. Tinker

Latimer, Judge

(concurring in the result) :

I concur in the result.

The route I follow to reach my conclusion differs from that traveled by my associates, so I prefer to spell out my views briefly in this separate opinion. Although I am certain applicable law requires that we hold the order in question to be “general” within the meaning of Article 92(1), Uniform Code of Military Justice, 10 USC § 892, and therefore affirm accused’s conviction, I am quite unable to accept the reasoning of the majority’s opinion. Particulai*]y, 1 note that my colleagues appear to depart from our prior pronouncements.

Resolving the issue before us is not difficult. Reference to a few cases will suffice, and I point out in passing that it is not necessary to deviate in the slightest from our previous holdings. In United States v Stone, 9 USCMA 191, *29525 CMR 453, we held no more than that it is unnecessary to allege or prove knowledge of a general order of a Department, or the Headquarters of a Territorial, theater, or similar area command — a much more restricted holding than the broad sweep my brothers apparently ascribe to that case. And in that unanimous opinion we referred with approval to United States v Snyder, 1 USCMA 423, 4 CMR 15, and United States v Arnovits, 3 USCMA 538, 13 CMR 94 — and I point out parenthetically that in both those cases the Court’s holding on the issue with which we are here concerned was also unanimous. We there considered the question of authority to issue general orders and the requirements of allegation and proof, and we directed specific attention to Article 92 of the Code, supra, the provisions of the Manual, and the effect of pre-existing law. From those opinions, it is unmistakably clear that general orders and regulations may be issued by commands inferior to the Department, Territorial, theater, or similar area command level, and that the commander of a post, ship, or station falls within that class. Moreover, although a specification need not allege knowledge of any general order, still in the case of a general order emanating from a command inferior to a Department, or Territorial, theater, or similar command, just as in the case of “any other lawful order,” it is necessary that knowledge be instructed upon and found. Our reversal in Arnovits is predicated on that requirement.

Turning to the facts of the instant case, there is no allegation of knowledge. However, as I have outlined above, a specification need not allege knowledge of a general order. Likewise, general orders may issue from commands inferior to the Territorial or theater level, in which latter situation knowledge must be proved and found. But in the case at bar, accused entered a plea of guilty, and hence we need not be concerned with proof or instructions. The sole question remaining in this appeal, then, is whether the commander United States Forces, Azores — who promulgated the instant order — is competent to issue general orders within the meaning of Article 92. While we have not fixed the precise limits of the commands which may issue general orders within the purview of Article 92(1), we have said that a company sized unit may not, United States v Brown, 8 USCMA 516, 25 CMR 20, and that the commander of a post, camp, or station may. United States v Snyder, supra. Although certainly it can be argued that the command with which we are concerned is of the level of a theater or Territorial command, it is unnecessary that United States Forces, Azores, be on that plane for its regulations of general applicability to constitute general orders. Here it is clear beyond peradventure that the command is of the requisite level for that purpose. It is superior to a “post, ship, or station,” United States v Snyder, supra; United States v Wade, 1 USCMA 459, 4 CMR 51; its “position in effectuating the mission of the service [s]” is substantial, United States v Brown, supra; and, as the majority note, our attention has not been invited to any order by superior authority restricting the issuance of general orders by this command, United States v Bunch, 3 USCMA 186, 11 CMR 186.

Manifestly, then, the commander was competent to issue general orders and, therefore, the specification alleging violation thereof, states an offense viola-tive of Article 92(1) of the Code, supra. Accordingly, I join my associates in affirming the decision of the board of review.